Nearly 7.5 percent of the population has a disability, yet the proportion of disabled adults in the workforce is lower, the Department of Labor says.Comstock Images

WASHINGTON, D.C. -- It used to be dicey for a company to ask a job applicant if he had a disability.

But the federal government wants its contractors to start soliciting such information next year, in what should be good news for Americans with disabilities -- but which worries some employers and labor lawyers deeply.

The government wants its contractors to work toward getting a workforce with 7 percent of employees with disabilities.

Carol Glazer, president of the National Organization on Disability, applauded the Obama administration announcement last week “for elevating employment of people with disabilities – the nation’s largest minority group, which includes a growing number of veterans – to the level of women and racial and ethnic minorities.” She said in a statement that “the hurdles for employers will not be a difficult threshold.”

But businesses and their trade associations said that while they, too, applaud the goal, they worry about whether it is practical.

“I work for a federal contractor company who happens to be in construction and real estate,” wrote Cynthia Grady, then the human resources director for the Miller-Valentine Group in Dayton, early last year. She has since retired. “There are very few disabled workers who will be able to perform the physical labor required for success in our building projects.”

Nearly $3 billion in primary federal contracts were issued to Ohio companies this fiscal year, government data show, and another $125 million in subcontracts. Every operation getting this money -- military contractors, vehicle makers, research firms, security operators -- will be affected when the rule begins around early March, although the Labor Department says it will allow time for transition.

One in five workers is employed by a federal contractor, according to some estimates. David Fortney, an attorney who served as acting solicitor in President George H. W. Bush's Labor Department, says some estimates put it at one in four, especially when considering subsidiaries or companies related to government contractors.

That's partly what gives him and those he advises, including the Society for Human Resource Management, concern. If a company such as General Electric, which makes jet engines, also makes household appliances, the appliance division could also fall under the rule, he said.

The Labor Department says it is not demanding that these companies actually have a workforce made up of 7 percent of people with disabilities. But it says it created this “aspirational utilization goal” to “give contractors a yardstick against which they can measure the success of their efforts in outreach to and recruitment of individuals with disabilities. More specifically, contractors should use the goal to measure the change in the representation of individuals with disabilities in their workforce.”

Explaining why, the Labor Department said in a question-and-answer document that “both the unemployment rate of working-age individuals with disabilities and the percentage of working-age individuals with disabilities that are not in the labor force remain significantly higher than for those without disabilities. A substantial disparity in the employment rate of individuals with disabilities continues to persist despite years of technological advancements that have made it possible for people with disabilities to apply for and successfully perform a broad array of jobs.”

So contractors will be required to prove they are making such an effort by keeping detailed records for review by the Office of Federal Contract Compliance Programs, or OFCCP. This means companies will ask prospective employees if they have disabilities -- information that companies traditionally avoided for fear of discrimination lawsuits.

Under the new rule, that information must be solicited twice during the hiring process. Companies are also supposed to conduct self-identification surveys every five years to assess how well they are doing. This means asking current employees to volunteer disability data that they might not wish to share.

The American Community Survey, a tool of the Census Bureau, estimated in 2009 that 5.7 percent of the civilian labor force has a disability. But the survey used a narrower definition of disability than that of the amended Americans with Disabilities Act, which counts a disability as a condition that "materially restricts" a major life activity.

Furthermore, the 5.7 percent figure “does not take into account discouraged workers, or the effects of historical discrimination against individuals with disabilities that has suppressed the representation of such individuals in the workforce,” the Labor Department says in a guidance document. OFCCP adjusted upward after estimating the “discouraged worker effect” -- measured by the American Community Survey as the percentage of the civilian population with a disability, or 7.42 percent.

It then set 7 percent as the goal.

The government maintains this is not a quota and says it will not penalize companies if they fail to reach the goal. But companies that fail to reach it must take steps to determine if there are impediments to equal employment, and “develop and execute action-oriented programs to correct any identified problem areas,” the Labor Department says.

The Society for Human Resource Management, in a 22-page letter submitted during the rulemaking process last year, warned that “many individuals with impairments may choose not to self-identify as disabled to their employer, even if they understand the parameters of the questions being asked.”

Some may not wish to make such a disclosure because they don’t want or need any special accommodation, said the society, which represents human resources officers nationwide. “Other individuals may mistakenly believe that they are not disabled, while still others erroneously will believe that they are.

“Further, there are significant groups that will not want to reveal their condition to their employer for fear of stereotyping and prejudice – regardless of medical privacy rules – such as those with a mental illness or with HIV. Requesting this data multiple times does not make the data more reliable – it simply increases the costs of collecting it.”

The Labor Department says the goal is worth the effort of the inconvenience or possible perceptions of intrusion.

“In a competitive job market, employers need access to the best possible employees,” Labor Secretary Thomas E. Perez said in announcing the final rule Aug. 27. “These rules make it easier for employers to tap into a large, diverse pool of qualified candidates.”

In a related rule, Labor told contractors they also must set a benchmark for hiring military veterans -- based either on the percentage of veterans in the general workforce or on their own benchmark based on the best available data. Eight percent of the workforce is currently composed of veterans, OFCCP said.

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